gameyy

17 hours ago, geowrian said:

Absolute worst case is AOS would be denied due to misrepresentation. Then they would move to remove her. Unless in an area where a VWP traveler can contest removal, she has no means to contest it and would be deported.

As a result, she would have a permanent bar due to misrepresentation + a 5 year bar due to removal. The permanent bar is waivable, but she would still have to go through consular processing abroad for an immigrant visa to return, and to qualify to file the waivers.

 

Much more realistic worst case, IMHO, would be a denial due to misrepresentation. Then refiling AOS with the misrepresentation waiver.

 

The very likely outcome would be no issue with what happened at POE and being approved for AOS without any issues.

 

The main difference between the last 2 circumstances would depend on if there was a misrepresentation at POE. Preconceived intent alone would not be cause for material misrepresentation.

As described, I did not see anything that could be reasonably construed as misrepresentation. But specifics will matter. A description of what happened isn't going to cut it...the specific questions and her responses would be what really matters. Assume they recorded those and act accordingly.

This is extremely helpful, thanks so much. I think, after looking at all of this info, and weighing it against what we were told at the border, that it would be wisest and safest to not risk the AOS from WVP. I'd hate for us to be separated during this pandemic. Much better to head back to South Korea and try to file for a visa there. Thank you all so much.

59 minutes ago, discoverusa said:

I would try to AOS and explain very well during the interview that at time of entry you weren't sure what is going to happen and where you'll end up living during those uncertain times. Then decided to stay and adjust. 

Thanks, this is also the direction I am leaning in now after doing some more reading on the situation. What would be the worst case scenario? Simply a refusal? Would there be any chance that my wife's ESTA could be cancelled? The border officers made it sound like she could be barred from entering for 5 years. Definitely something we want to avoid risking.

As for what happened at POE (SFO, here in Cali, one of the few places where flights from mainland can land), according to the borders officers, the reason for the secondary interview was that when they asked what my wife's intent was, I stated that we weren't sure, that we were forced to suddenly leave China and only had time and circumstances to get my wife an ESTA, and that we would like to stay. When I said that last part, this is when they pulled her aside for the interrogation. I had looked up ESTA before, and knew that there was such a thing as change of status, so I assumed it would be ok to mention this. But apparently you can't enter with this intent, a fact which even the customs officials admitted was not very clear on the ESTA application process.

So far as I know, there were no other reasons for the secondary interview. We have been married for eight years and my wife has visited the US with me multiple times before, always using ESTA, and we've never had problems. Eventually it was resolved, because, and I quote, "We will make an exception for you since you were fleeing another country during a pandemic and had no choice but to enter on an ESTA."

1 hour ago, Scandi said:

"Fled Asia due to pandemic", the pandemic started months and months ago, and has gotten waaaaay better in South Korea since. Surely she must've overstayed her 90 day stay by now?

We were leaving China. It was an emergency as our visas were cancelled suddenly by the Chinese government (something that is happening to many foreigners at the moment.) We only entered the US a few weeks ago, in July. She has not overstayed. We were originally planning on leaving mid-Septmeber. Of course, if there is a low-risk way to stay and change status, that would be ideal. But I am wary.

2 minutes ago, aaron2020 said:

Where is your wife right now?

 

We are together in the US with family.

1 minute ago, SusieQQQ said:

It’s not the “too honest” that is getting you in trouble, it’s the preconceived intent to immigrate on the wrong visa (or ESTA in your wife’s case) . If you are a citizen then your wife is exempt from the restriction on adjusting from ESTA, but the intent on entry may be a problem. Have seen a denial for similar reported. So IR visa is definitely the route to go.

 

Can you check and see if your wife’s ESTA is still valid? As you indicated some serious questions at the border, it’s possible it’s been retracted, or that there is a note on her file about entry next time, which may be why they recommended a B visa. ESTA is a big privilege and the flip-side of that is that it can be quickly lost if they suspect it is being misused.

I'll look it up a little later and report back, as I don't have all the info on hand to check. Does anyone know if it is possible to enter multiple times on the same ESTA while waiting for the CR-1 to process? Or is it better to apply for a new ESTA each time? Or is it best to go the B2 route after all?

1 minute ago, Lucky Cat said:

Yea, their suggestion makes no sense.....no need for a B2 if a person qualifies for ESTA.  But Visiting is allowed during the CR-1 process....on a B2 or VWP.

Yeah, I thought the same thing. Unless the time of stay on a B2 is longer than ESTA? Because I believe it is 6 months, which would give her a bit more time to be here, but then we'd need to stay there in Korea for even longer, so yeah I'm not too sure. My other thought was that perhaps it would be difficult to enter again on ESTA after the previous interrogation.

1 minute ago, Lucky Cat said:

Absolutely.......they have her on their radar.......but, since they allowed her to enter, they believed, at the time of entry, that her intent was to visit.   Normally, she would be able to legally adjust status now since her situation has changed.......but if specific statements were made during her "interrogation" which would lead USCIS to believe she lied (misrepresentation) during that questioning, then I could see some difficulty arising during an adjustment of status interview......

 

I have seen only one other case which was denied due to preconceived intent to commit visa fraud......and it arose from specific comments made during a secondary interview when the person entered the US.

 

The law is clear.  A person cannot enter the US via a non-immigrant route with the intent to stay and adjust status.

Yes, this fits with what they said. They recommended getting a flight out and then applying for a different visa to return. One thing I found a little puzzling was that they recommended first getting a B1/B2, and then applying for an IR-1 later. Why not just apply for the IR-1 right away as someone previously suggested?

2 hours ago, Luckycuds said:

Hi, you are able to apply for adjustment of status if you guys have now decided to live in the USA permanently. An immigration officer is not going to tell you this at point of entry because she wouldn't be let it (the ESTA is for tourist purposes) Since it appears your situation has changed since you arrived you can now apply to adjust status. Please note that she will be unable to leave/work for approximately 6 months. If she is unprepared to do this, then your option would be for her to go home and at any point you file for the spousal visa (IR1) which will take 1+ years. No need to contact USCIS at this time.

If you guys agree to not adjust status and she overstays her ESTA she loses it and will have to apply for a B1/B2 if she wants to visit. 

Thanks so much, this is very helpful. I thought it was impossible to change status of an ESTA. This is what we were told.

2 hours ago, Lucky Cat said:

Was her intent to visit or to stay and adjust status when she entered the US via VWP?  That is THE relevant question.

So this is a difficult question to answer. We really had no concrete plans. We were living in China when our Chinese visas were cancelled suddenly, and this was the only place (US) we could get a flight to. However, at point of entry I explained that we would like to stay in the US if possible, which caused issues with immigration and led to an interrogation. However, looking at our situation and realizing that we were not trying to cheat the system by sneaking in and changing status, they let my wife enter. So I guess my question would be, do they have a record of this conversation? Again, we want to do things honestly and legally but we are not sure what the future will bring with this pandemic and have no idea where we'll end up (here or Korea). We'd prefer to stay here in the US, however.

Thanks again guys for your speedy responses! So helpful!

Hello all. I've taken a look through this forum and haven't found anything similar to this, so I'm starting a new topic. Please feel free to point me in the right direction if I'm repeating an old topic. Here's my situation.

I am a USC. My wife is South Korean. We were married in Korea years ago and have been living in China in all that time. Due to the pandemic and visa cancellations, we were forced to travel suddenly to California, where we are living with family. Because there was no time to start the green card process, my wife flew in on the ESTA WVP. We were told that we cannot change status to a permanent resident, in spite of the fact that we have been married for years, that I have stable employment, etc. Borders officials recommended that we fly back to Korea and try for the B1/B2, then re-enter the US on that, then fly back in a few more months to apply for the IR-1. But this process of going back and forth could take years. We tried contacting some immigration lawyers and they are claiming that it is possible to switch from the ESTA to a permanent residence status, but this is the first time I've heard of it (and I haven't seen anything on this forum leading me to believe this is possible). I am very wary of contacting the USCIS directly because we had issues at immigration entering the airport since I had explained we were married and hoping to stay in the states. We want to do things legally, of course, but it seems that being too honest can get you in trouble as well. Suggestions? Is going back and forth the only way?

Thanks so much in advance everyone, this forum has already been a huge help.

I have a related question to this (after reading through this thread it doesn't seem to have been brought up):

My wife (South Korean) and myself (USC) recently had to flee a foreign country due to the pandemic. Since we had no time to file for a B2 visa, she entered on an ESTA. Ideally we would like to live here in the US together. We would eventually like to file for the IR1 visa for her to stay permanently, but we don't want to process the request while here since we cannot change her VWP. So we will need to return to Korea first to get the B2. My question is, would it be possible for us to apply for the B2 and also try to start the CR1 process while there, or should we start the CR1 at a later time in Korea?

Any help would be much appreciated, a friend recently sent me this website and it has been a wonderful resource. Thanks in advance!